Priest v. Brown, 1532

• Decision Date: 04 June 1990
• Docket Number: No. 1532,1532
• Citation: 396 S.E.2d 638,302 S.C. 405
• Parties: Ann PRIEST, as Administratrix of the Estate of Gary Blackwood, Appellant, v. Derrick Lamart BROWN and Berkeley Electric Cooperative, Inc., a South Carolina Corporation, Defendants, of whom Berkeley Electric Cooperative, Inc., is Respondent. . Heard
• Court: South Carolina Court of Appeals

Page 638

396 S.E.2d 638

302 S.C. 405

Ann PRIEST, as Administratrix of the Estate of Gary Blackwood, Appellant, v. Derrick Lamart BROWN and Berkeley Electric Cooperative Inc., a South Carolina Corporation, Defendants of whom Berkeley Electric Cooperative, Inc., is Respondent.

No. 1532.

Court of Appeals of South Carolina.

Heard June 4, 1990.

Decided Aug. 27, 1990.

Certiorari Denied Dec. 12, 1990.

Arnold S. Goodstein, of Goodstein & Goodstein, Summerville, and Mary Ann Marwick, Johns Island, for appellant.

Douglas Pratt-Thomas, of Wise & Cole, Charleston, and John B. Williams, of Williams, Landis & Holler, Moncks Corner, for respondent.

SHAW, Judge:

Appellant, Ann Priest, as Administratrix of the Estate of Gary Blackwood, brought suit against respondent, Berkeley Electric Cooperative, Inc. (BEC) alleging causes of action in negligence, breach of warranty of merchantability and fitness for a particular purpose and strict liability. From an order granting summary judgment to BEC, Priest appeals. We affirm.

The facts of this case are largely undisputed. On February 7, 1988, Derrick Lamart Brown was travelling on a highway in Dorchester County when he lost control of his vehicle and hit a utility pole supporting electrical distribution lines owned and maintained by BEC. The impact snapped the "pole top pin" which attaches the wire to the pole. The unbroken wire swung down over a curve in the road and came to rest several inches above the center line, blocking the eastbound lane of traffic. The South Carolina Highway Patrol was notified of the accident and Trooper Terry Richards was dispatched to the scene. South Carolina Electric and Gas Company was also allegedly notified apparently under the belief that it owned the line. Upon arriving at the scene, Officer Richards found Derrick Lamart Brown talking with Brown's father and brother. After interviewing Brown, Officer Richards placed him under arrest for driving under the influence. The Dorchester County Sheriff's Department was contacted for assistance with traffic control and Deputy Gary Blackwood arrived at the scene.

According to the deposition testimony of Officer Richards, upon Blackwood's arrival, Officer Richards informed him he needed help getting traffic around the downed power line. Blackwood told Officer Richards he believed the line was neutral since it was not insulated and that they could move it. Officer Richards responded that he knew nothing about power lines and that SCE & G was enroute. The father and brother of the driver of the automobile also testified by way of deposition that they warned Blackwood the wire was "hot". Blackwood picked up the line to move it, and as he stepped off the road, he was electrocuted and died.

Priest contends the trial judge erred in granting summary judgment to BEC on the issue of negligence as genuine issues of material fact were presented by the record. She first argues a genuine issue exists as to whether BEC was negligent in the repair of the power pole in a similar accident which occurred six months prior to the one at hand.

The record reflects that in August 1987, another automobile struck a pole in the same location causing the pole to break and the transmission line to come loose. According to the deposition testimony of Randy Dillard, a BEC employee who worked on the pole after the August accident, the pin attaching the wire to the pole was also bent. He stated, "We had to change the pole, put a new pole up there and reframed it and put everything back up." "Framing" refers to the hardware on the pole. While Dillard agreed that his work order did not reflect whether he changed the pin, he stated that he remembered that he did, indeed, change the pin. Priest's contention that an issue of fact exists as to whether or not a new pin was installed after the August accident is without foundation. Absolutely no evidence was presented to show the same bent pin was in place on the pole on the night of the February accident. The only evidence in the record is that the pin was, in fact, replaced. Summary judgment is appropriate in those cases in which plain, palpable and undisputable facts exist on which reasonable minds cannot differ. It is not sufficient that one create an inference which is not reasonable or an issue of fact that is not genuine. Main v. Corley, 281 S.C. 525, 316 S.E.2d 406 (1984). The judge is not required to single out some one morsel of evidence and attach to it great significance when patently the evidence is introduced solely in a vain attempt to create an issue of fact that is not genuine. Id. 316 S.E.2d at 407.

Priest also argues an issue of fact exists as to whether a faulty mechanical design of BEC's distribution line was the cause of Blackwood's death. She argues that, had BEC used a suspension insulator to connect the wire to the pole, the wire that electrocuted Blackwood would never have come loose.

Both Priest and BEC presented expert testimony on the matter. BEC's expert testified that the construction of the pole was in accordance with the National Electrical Safety Code (N.E.S.C.) and the Rural Electrification Administration (R.E.A.), there were no code violations, he knew of no deviations from accepted standards, he found no negligence by BEC in the design of the line, and he did not believe BEC should have installed a stronger suspension system at this location. Priest's expert, likewise, could point to no violations of the N.E.S.C. or R.E.A. Further, he admitted that he was not knowledgeable enough of the utility industry standards to give an opinion on whether there was a defect in the distribution line but, in his opinion, it was not a good design for that pole. He stated only that, based on his investigation, he felt the line could have been designed in a safer manner. We find this testimony insufficient to create a genuine issue of material fact as to BEC's negligence in the design of the line.

Priest next contends the trial judge erred in finding that, even if BEC was guilty of negligence, Blackwood was contributorily negligent and assumed the risk as a matter of law. We disagree.

The evidence clearly supports the trial judge's finding that Blackwood was contributorily negligent and assumed the risk. BEC presented testimony that Blackwood attended and completed a course at the South Carolina Criminal Justice Academy in August and September of 1986. The procedure which is taught upon encountering a downed power line is to isolate the area, notify the proper agency, and remain in the area for control of traffic and crowds. There is no indication Blackwood was taught to make his own determination of whether the wire was safe to move. Further, testimony of two witnesses indicates they informed him the wire was "hot". In spite of his training and the warning of these...